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U.S. OGP National Action Plan 3.1: Next steps to open US government contracting

29 Oct 2015

By Ruairi Macdonald

The U.S. government has just launched its new U.S. National Action Plan (NAP 3.0), while here at the Open Government Partnership (OGP) Summit in Mexico City.

At the Open Contracting Partnership, we are excited by NAP 3.0’s broad scope, the attention to subnational government initiatives, and the promotion of the 2030 Agenda for Sustainable Development. Of course, we are most excited about and focused on the inclusion of fiscal transparency commitments.

The NAP is intended to be a living document. We view the fiscal transparency commitments in NAP 3.0 as the beginning of a conversation. This conversation is about opening-up public contracting through disclosure, open data, and better business and civic engagement. The living, iterative nature of the NAP presents an opportunity to deepen dialogue about the benefits of open contracting to U.S. acquisitions professionals, government program staff and, most importantly, U.S. citizens.

To carry that momentum forwards, we propose four next steps to open up the U.S. public procurement system as we move to NAP 3.1.

They are:

(1) Dial up the ambitions on public openness;
(2) Add more engagement and participation;
(3) Add the who and when;
(4) Collaborate on an Open Contracting Data Standard (OCDS) pilot to show the benefits of public transparency in action.  

These will help the NAP deliver on its ambitions and draw from U.S. civil society’s model plan, to which we contributed.

Step 1: Dial up public openness

The commitment in NAP 3.0 is to “Centralize Integrity and Ownership Information of Contractors,” does not yet clearly promise to open anything to the public. The Administration has committed to facilitate the display of “integrity information” about Federal contractors and grant recipients. For contractors, this will include additional information on labor violations and identification of parent and subsidiary organizations. It will also include information about corporate contractor performance in order to give acquisition officials a comprehensive understanding of the performance and integrity of a corporation in carrying out Federal contracts and grants.

This is potentially awesome, except that it might not be open to the public. The awesome part is that the commitment reflects work already being done to consolidate information into the System for Awards Management (SAM), including the changes to the Federal Acquisition Regulations to track parent companies and subsidiaries with Commercial and Government Entity Code (CAGE) codes, the inclusion of parent and subsidiary information in the Federal Awardee Performance and Integrity Information System (FAPIIS), and implementation of the executive order on Fair Pay and Safe Workplaces. However, the commitment as written is to “give acquisition officials a comprehensive understanding…” There is no direct commitment to open anything to the public, nor is there any assurance that grantee and contractor identifying information will be open and freely reusable. (For background on the identifier issue, see this U.S. General Accountability Office report about Dun & Bradstreet’s “monopoly for government unique identifiers that has contributed to higher costs.”)

The System for Award Management is an essential tool for acquisition officials to ensure that agencies are not contracting with disbarred, suspended, or unqualified high risk contractors. However, competing businesses, competing grantees, civil society and end-users of goods and services could efficiently provide information to acquisition professionals to help them evaluate risks. This receipt of information brings us to Step 2.

Step 2: Boost participation and engagement in contracting

The U.S. NAP can better realise the power of public engagement and participation in government spending. Under the commitment to “Publish Standardized, Reliable, and Reusable Federal Spending Data,” the U.S. Department of the Treasury and the White House Office of Management and Budget (OMB) will leverage technology to engage stakeholders and adopt a highly participatory and innovative approach to “re-imagine” USAspending.gov and make spending data more accessible and searchable.

Participation and innovation are definitely needed in the development of the new USASpending.gov. Treasury and OMB have also done an excellent job so far since the enactment of the Digital Accountability and Transparency Act of 2014 (DATA Act). (See for example the Federal Transparency GitHub.)

However, web tool development is only one place where participation can add value. We have a much more transformational suggestion: USASpending.gov itself could be a participation tool.

Open contracting is about receiving feedback and engaging with stakeholders in the planning, award, and performance of grants and contracts, not just publishing information. Re-imagine USAspending as in the basis of a civic participation tool: it needs to be able to listen, not just to talk. USAspending could streamline feedback loops between acquisition staff who buy, government program staff who use, and the citizens who are served.

Similarly, under the commitment to “Improve the Usability of Public Procurement and Grants Systems and Make it Easier to Identify Awardees,” the U.S. will leverage digital technologies and stakeholder feedback to improve the effectiveness of the public procurement and grants systems and foster openness and competition. It’s great that the U.S. will follow best practices and take stakeholder feedback while improving, but the outcome of this improvement should be systems that themselves allow procurement officials and program staff to receive feedback.

The NAP 3.0 itself has an entire section on participation in other areas of government. We suggest making sure it’s firmly embedded where it matters most to citizens – our tax money spent on services to us.

Just who in the United States will be working on this brings us to Step 3.

Step 3: Who and When

The NAP should identify a specific person, or at the least office, responsible for engaging with civil society on open government procurement reform issues. Presumably, this would be the Office of Federal Procurement Policy (OFPP) within OMB.

It is clear that Treasury and the OMB are working on USASpending.gov committment, which is the role given to them by the DATA Act. However, the Usability of Systems commitment and the Centralising Integrity and Ownership Information commitment do not assign implementation responsibility beyond “the United States” and “the Administration” respectively.  

OFPP is a small office in the White House Office of Management and Budget. If OFPP needs more empowerment, perhaps an update to the Federal Acquisition Regulations (FAR) council and/or rule-making process might help. If OFPP needs more resources to engage civil society and agency personnel on these issues, then perhaps they should get more funding – perhaps some of the “industrial funding fees” charged by agencies on top of contractors prices for using their acquisition vehicles.

This open government procurement point person could then work with civil society to clarify milestones and timeframes on implementation of the 3.0 commitments and any new 3.1 interactions. (This would be in line with OGP guidance on inclusion of milestones and timeframes in NAP commitments.)

Step 4: Pilot the OCDS

The OGP encourages boldness and rates commitments for ambition. Our fourth step for more open U.S. contracting speaks to that. The U.S. government can to join all its interventions together in a more transformational way to share proper reusable open data on public contracting including sharing key documents along the process. Countries like Slovakia are doing this and seeing major benefits, which we have all been hearing about here in Mexico.

The best schema to assist with this is the Open Contracting Data Standard, which is supported by the Open Contracting Partnership (yes, that’s us) as an open, non-proprietary standard. OCDS implementation and attendant stakeholder engagement could be piloted at one specific agency and part of DATA Act implementation and a DATA Act recipient reporting pilot. The U.S. Department of Health and Human Services (HHS) is running a DATA Act pilot in respect of grants.  An open contracting pilot at the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) was suggested by the Center for Global Development. Perhaps the HHS DATA Act pilot could be expanded to include publication to OCDS of PEPFAR spending by HHS. There are other options of course. Wherever a U.S. open contracting pilot is held, it needs to involve procurement officials and help them buy better with stakeholder feedback at all stages in the procurement process through efficient, manageable channels. This feedback will help the government get the best deals with the best contractors, buy the right things at the right time, and monitor contractor performance more effectively.

Let’s co-create on open contracting!

The OGP process for developing a NAP is a collaborative “co-creation” with civil society. This is an iterative process. Civil society is ready to co-create and co-innovate on procurement. The ambition in NAP 3.0 now has to be turned into results. Our next steps and ideas for NAP 3.1 will be key to getting better results for citizens from the procurement system. Let’s dial up the openness and the engagement, assign clear responsibility for open government procurement policy, and launch open contracting data pilots in the U.S. as soon as possible.